The Bencher—July/August 2016
By William R. Peterson, Esquire
There are four ordinary paths that petitions for writs of certiorari take through the Supreme Court of the United States. The vast majority of the approximately 8,000 petitions for writs of certiorari received each year are denied. Around 80 petitions are granted and, after merits briefing and oral argument, the cases decided in opinions issued by the court. Some petitions present issues that are identical or similar to those in pending cases—these petitions are ordinarily held until the other case is decided and the lower court’s judgment then summarily granted, vacated, and remanded (“GVR’d”) for reconsideration in light of the Supreme Court’s decision. Finally, in response to a small number of petitions, perhaps seven each year, the Supreme Court summarily reverses the judgment of a lower court, ordinarily in a per curiam opinion without argument and without additional briefing.
These four paths all involve the Supreme Court’s adjudicatory process working as intended. But sometimes, something goes awry. The Supreme Court will occasionally grant a petition for writ of certiorari, receive merits briefing, perhaps even hear oral argument, and then issue an order dismissing the writ as improvidently granted. The lower court’s judgment remains in effect as though the Supreme Court had never granted certiorari at all.
When this occurs—on average, just over one-and-a-half times per term—extraordinary amounts of time and resources go to waste. Lawyers can spend hundreds of hours briefing cases in the Supreme Court and preparing for argument. Similarly, spending time studying and preparing for argument in a case that ultimately goes unresolved takes up the time and attention of the justices and law clerks that could have been spent on a different case.
Understanding the reasons for these dismissals helps avoid this waste and can provide insight into the types of “vehicle” issues considered by the court before granting certiorari.
Over its 11 terms, the Roberts Court has dismissed 18 writs as improvidently granted. In one additional case, discussed below, the writ was dismissed in part. Most of these dismissals occurred after oral argument; the two exceptions were a dismissal due to a settlement and a dismissal (apparently) due to a state court’s answer to a certified question.
Twelve of these dismissals were in the “traditional” form: unsigned, per curiam orders with no concurrence, dissent, or explanation. Here is a recent one:
The writ of certiorari is dismissed as improvidently granted. It is so ordered.
Duncan v. Owens, No. 14-1516 (U.S. Jan. 20, 2016).
These decisions make up part of the Supreme Court’s “shadow docket” of non-merits rulings, often procedural decisions that are “ad hoc or unexplained” (William Baude, foreword: “The Supreme Court’s Shadow Docket,” 9 NYU Journal of Law & Liberty 1, 11 ).
Without explanations provided for these dismissals, observers can only speculate as to the court’s reasoning. Oral argument often gives a strong clue as to why the writ would be dismissed. In Madigan v. Levin, which concerned the Age Discrimination in Employment Act, oral argument revealed that the plaintiff might have been covered by an entirely different law: the Government Employee Rights Act of 1991:
JUSTICE BREYER: [B]ut what are we doing, deciding whether the ADEA applies and in what way to a person to whom it doesn’t apply, assuming that GERA is, in fact, a separate statute that you have to sue under, the answer to which I do not know and which has never been argued.
MR. SCODRO: Your Honor, there’s very little lower court authority on the effect of GERA….
JUSTICE BREYER: And so, if there’s so little about it, sometime, on occasion, we dismiss a case as improvidently granted, which is not a particularly desirable thing to do. But how could we avoid doing that here?
(Transcript of Oral Argument at 21, Madigan v. Levin, 134 S. Ct. 2 , No. 12872). Or consider Vasqez v. United States, in which the court struggled to identify the clash between the parties’ positions:
JUSTICE ALITO: Is it correct that the difference between your position and the government’s position is that the government says the focus should be on a rational jury, and you say the focus should be on this particular jury?
MR. BRINDLEY: That is one of the important differences. I think—
JUSTICE ALITO: Well, that I understand. But beyond that I really don’t understand the difference between the two positions.
(Transcript of Oral Argument at 8, Vasquez v. United States, 132 S. Ct. 1532 , No. 11-199).
In a few cases, the court provides an explanation for dismissing the writ as improvidently granted. In Roper v. Weaver, the explanation came in the court’s per curiam opinion. 550 U.S. 598, 599 (2007). After a criminal defendant received habeas relief based on a prosecutor’s inflammatory closing statement, the state sought certiorari, arguing that the court of appeals misapplied the Anti-Terrorism and Effective Death Penalty Act (AEDPA). Id. But, the court explained, the defendant should not have been subject to AEDPA. Id. at 601. The habeas petition was filed after AEDPA’s enactment only because a district court had erroneously dismissed an earlier habeas petition. Id. Noting that two other defendants had received relief for the same inflammatory statements, the majority explained, “[W]e find it appropriate to exercise our discretion to prevent these three virtually identically situated litigants from being treated in a needlessly disparate manner, simply because the district court erroneously dismissed respondent’s pre-AEDPA petition.” Id. at 601-2.
Justice Scalia, joined by Justice Thomas and Justice Alito, dissented. While accepting that the district court erred in dismissing the earlier petition, the dissent noted that this error was unappealed and, in any event, no justification for “leav[ing] the Eighth Circuit’s grossly erroneous precedent on the books.” Id. at 602-7 (Thomas, J., dissenting). What is most interesting for the purposes of this article is how the dissent explains the majority’s decision to dismiss the writ:
The court seems to be affected by a vague and discomforting feeling that things are different now from what they were when we granted certiorari. They are so only in the respect that we now know, as we did not then, that respondent’s earlier petition was wrongfully dismissed. That fact has relevance neither to the law governing this case (as discussed in Part I, supra) nor to any equities that might justify our bringing to naught the parties’ briefing and arguments, and the Justices’ deliberations, on the question for which this petition was granted.
Id. at 606. The dissent describes the dismissal as “particularly perverse” because “it is the fault of respondent that we did not know of the wrongful dismissal earlier.” Id.
In Boyer v. Louisiana, explanation for the dismissal was provided by a concurrence. 133 S. Ct. 1702 (2013). Justice Alito noted that the premise of the question presented was that “a breakdown in Louisiana’s system for paying the attorneys representing petitioner…caused most of the lengthy delay between his arrest and trial.” Id. at 1703 (Alito, J., concurring). He then explained that the writ of certiorari was improvidently granted because the record revealed that this assumption was false. Id.
Justice Sotomayor, dissenting, suggested that the court could resolve the abstract legal question—holding that “any delay that results from a state’s failure to provide funding for an indigent’s defense weighs against the state”—and leave to the state courts on remand the question of whether the funding was actually the cause of any delay. Id. at 1707 (Sotomayor, J., dissenting). As in Roper, the dissent faulted the respondent for the posture. See Id. at 1708 (stating that Louisiana conceded that the delay was due to lack of funding).
Perhaps the most interesting discussion came last term, in City & County of San Francisco v. Sheehan, where a petitioner’s arguments on the merits stage did not correspond to the arguments in its petition for writ of certiorari. 135 S. Ct. 1765 (2015). Before Petitioner’s counsel could speak a sentence at argument, Justice Scalia accused counsel of a “bait-and-switch”:
Your petition…said…this court should resolve whether and how the Americans with Disabilities Act applies to arrests of armed and violent suspects who are disabled….
…This argument is not made in the petition at all…. [Y]ou concede…that Title II does apply even to the arrest of…armed and dangerous suspects….
…[T]here’s a technical word for this. It’s called bait-and-switch.
(Transcript of Oral Argument at 3-4, City and County of San Francisco v. Sheehan, 135 S. Ct. 1765 , No. 13-1412). And sure enough, the court, in an opinion written by Justice Alito, dismissed this question as improvidently granted. 135 S. Ct. at 1774.
But the case also presented a second question: whether the individual officers should have received qualified immunity. The court resolved this question on the merits and reversed the Ninth Circuit, concluding that any right violated by the officers was not clearly established. Id. at 1778.
Justice Scalia, joined by Justice Kagan, dissented and argued both questions should have been dismissed as improvidently granted. Id. at 1778-79 (Scalia, J., dissenting). He noted that the court would not have granted certiorari on the second question alone and “would not reward such bait-and-switch tactics by proceeding to decide the independently ‘uncertworthy’ second question.” Id. at 1779.
In other cases, a dissent offers some insight into the reasoning behind the dismissal. For example, in Unite Here Local 355 v. Mulhall, Justice Breyer’s dissent explained that “in considering the briefs and argument, we became aware of two logically antecedent questions that could prevent us from reaching the question of the correct interpretation of § 302.” 134 S. Ct. 594, 595 (2013) (Breyer, J., dissenting).
Reviewing cases, the most surprising fact was how frequently—eight times—the prospect of dismissal of the writ was mentioned in dissent from a case that was decided on the merits. For example, in Kingsley v. Hendrickson, Justice Alito argued that the court should not have decided the question presented without first deciding a different question:
Before deciding what a pretrial detainee must show in order to prevail on a due process excessive force claim, we should decide whether a pretrial detainee can bring a Fourth Amendment claim based on the use of excessive force by a detention facility employee. We have not yet decided that question.
135 S. Ct. 2466, 2479 (2015) (Alito, J., dissenting); see also Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1436 (2013) (Ginsburg and Breyer, JJ., dissenting) (“Comcast’s forfeiture of the question on which we granted review is reason enough to dismiss the writ as improvidently granted.”).
The common thread throughout these cases is the discovery by the court, after the grant of certiorari, of some new issue of fact or law that interferes with the resolution of the question that the court granted certiorari to resolve. The relative rarity with which this occurs indicates the sort of issues the court considers before granting certiorari:
- Does the question presented assume any facts? If so, are those facts supported by the record? Boyer v. Louisiana, 133 S. Ct. 1702 (2013).
- Are any legal predicates of the question presented correct? Madigan v. Levin, 134 S. Ct. 2 (2013).
- Are there other legal issues that the court should resolve before addressing the question presented? Kingsley v. Hendrickson, 135 S. Ct. 2466, 2479 (2015) (Alito, J., dissenting).
- Is there a well-developed clash between the parties’ positions? Vasquez v. United States, 132 S. Ct. 1532 (2012).
A petitioner for certiorari would be well-advised to assure the court that these and similar issues are not present in the case for which certiorari is sought.
Justice Jackson famously described the Supreme Court as “not final because we are infallible” but “infallible only because we are final.” The practice of dismissing the writ as improvidently granted reveals that some of the court’s decisions are neither infallible nor final. It is a testament to the court’s commitment to deciding cases correctly that it will reconsider the grant of certiorari and dismiss the writ rather than risk resolving a case incorrectly after unforeseen issues of fact or law come to light.
William R. Peterson, Esq., is a partner at Morgan, Lewis & Bockius in Houston, Texas, where he provides appellate representation through all stages of the state and federal litigation process. He is a barrister member of the Garland R. Walker AIC, was a 2011 Temple Bar Scholar, and currently serves on the American Inns of Court Board of Trustees.
© 2016 William R. Peterson, Esq. This article was originally published in the July/August 2016 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.